Sanger Bank v. David Frankens and Kathryn Frankens

Opinion

ACCEPTED

12-15-00256-CV

TWELFTH COURT OF APPEALS

TYLER, TEXAS

10/21/2015 5:08:43 PM

Pam Estes

Appellate Docket Number: 12-15-00256-CV CLERK

Appellate Case Style: Sanger Bank

Vs.

David Frankens and Kathryn Frankens FILED IN

Companion Case No.: 12th COURT OF APPEALS TYLER, TEXAS

10/21/2015 5:08:43 PM

PAM ESTES

Clerk

Amended/corrected statement: DOCKETING STATEMENT (Civil)

Appellate Court: 12th Court of Appeals (to be filed in the court of appeals upon perfection of appeal under TRAP 32)

I. Appellant II. Appellant Attorney(s) o Person [gJ Organization (choose one) ~ Lead Attorney First Name:

First Name: Middle Name: Middle Name: Last Name:

Address 1:

400 W. Oak St., S~te::.

3:..;1:::0=::::::::=======::::;

Address 2: City: State: Texas Zip+4: 76201-9059 Telephone: ext. Fax: 940-566-6673 Email: ryan@wtwlawfirm.com SBN:

I. Appellant II. Appellant Attorney(s) o Person [gJ Organization (choose one) o Lead Attorney First Name: Richard First Name:

Middle Name: Last Name: Suffix: Pro Se: 0 Address 1:

Address 2:

City: Denton

State:

Telephone:

Fax:

Email: bill@wtwlawfirm.com

SBN: 21906000

I. Appellant II. Appellant Attorney(s) o Person [;gJ Organization (choose one) o Lead Attorney

First Name:

First Name: Middle Name:

Middle Name: Last Name:

Last Name: Suffix:

Suffix:

Pro Se: 0 Address 1:

Address 2:

City:

State:

Fax:

Email:

SBN:

III. Appellee IV. Appellee Attorney(s) [;gJ Person o Organization (choose one)

First Name:

First Name: Middle Name:

Middle Name: Last Name: ;.;R~y,;,;li.;.e ~~ ...•

Last Name: ;;;..f;;.;rank=.;;;en;.;;s;.... ---II Suffix: _

Suffix:

Pro Se: 0 Address 1:

Address 2:

City:

State: Telephone: 936-632-2300 ext. Fax: Email:

SBN: 24065977

Ill. Appellee IV. AppeUee Attorney(s) [;gJ Person o Organization (choose one) o Lead Attorney First Name:

First Name: Kathryn Middle Name:

Middle Name: Last Name:

Last Name: Suffix:

Suffix:

Pro Se: 0 Address 1:

Address 2:

City:

State:

Fax: Email:

SBN:

V. Perfection Of Appeal And Jurisdiction

Nature of Case (Subject matter or type of case): [nj;:u~nc:.:t:.:io;.:;n:..- --,

Type of judgment: .:;n:.:t,;;,;er;.:;lo;;.;c;.;u;.:;to;;,;:rY.b.;;.O;;.;r.;;d,;;,;er ~ ___I Date notice of appeal filed in trial court: October 15,.;::2;.::.0.;,;15:.- --1

Ifmailed to the trial court clerk, also give the date mailed:

Interlocutory appeal of appealable order: ~ Yes D No If yes, please specify statutory or other basis on which interlocutory order is appealable (See TRAP 28): '~~==~~==~=t2: (granting a temporan: injunctionll.-

""~=:;.,"""",.",,0,,,,14 ~ ......I Accelerated appeal (See TRAP 28): ~ Yes D No Ifyes,'p'lease s ecify statutory or other basis on which a eal is accelerated: TRAP 28.1 a aPI~ealfrom an interlocutorY order under CPRC ch. 65.l- ~~ ~-J

Parental Termination or Child Protection? (See TRAP 28.4): DYes ~No

Permissive? (See TRAP 28.3): DYes ~ No If yes, please specify statutory or other basis for such status:

Agreed? (See TRAP 28.2): D Yes ~ No If yes, please specify statutory or other basis for such status:

Appeal should receive precedence, preference, or priority under statute or rule: DYes IZI No If yes, please specify statutory or other basis for such status:

Does this case involve an amount under $100,000? D Yes ~No Judgment or order disposes of all parties and issues: DYes IZINo Appeal from final judgment: D Yes ~No Does the appeal involve the constitutionality or the validity of a statute, rule, or ordinance? D Yes ~No

VI. Actions Extending Time To Perfect Appeal

Motion for New Trial: DYes IZI No If yes, date filed: Motion to Modify Judgment: DYes IZI No If yes, date filed: Request for Findings of Fact DYes IZI No If yes, date filed: and Conclusions of Law:

DYes IZI No If yes, date filed:

Motion to Reinstate:

DYes ~No If yes, date filed:

Motion under TRCP 306a: Other: DYes IZI No If other, please specify:

VII. lndigency Of Party: (Attach file-stamped copy ofaffidavit, and extension motion iffiled.)

Affidavit filed in trial court: DYes IZI No If yes, date filed:

Contest filed in trial court: DYes D No If yes, date filed:

Date ruling on contest due: L-________ ~ ~------------~

Ruling on contest: D Sustained D Overruled Date of ruling:

VIII. Bankruptcy

Has any party to the court's judgment filed for protection in bankruptcy which might affect this appeal? DYes ~ No If yes, please attach a copy of the petition.

Date bankruptcy filed: Bankruptcy Case Number:

IX. Trial Court And Record

Clerk's Record:

Trial Court Clerk: ~ District D County

Was clerk's record requested? D Yes ~ No

If yes, date requested:

Trial Judge (who tried or disposed of case):

First Name: Were payment arrangements made with clerk? Middle Name: DYes DNo Dlndigent

(Note: No request required under TRAP 34.S(a),(b» Suffix:

Address 1:

Address 2:

City: Lufkin State:

Telephone: 36-637-0217

Fax: Email:

Reporter's or Recorder's Record:

Is there a reporter's record? ~Yes D No

Was reporter's record requested? ~Yes DNo

Was there a reporter's record electronically recorded? ~ Yes D No

If yes, date requested: 1"=0;.:c:.::;to::.:b::.:e::.r..::6:.>....:.::.:.;::....

__ ~

Ifno, date it will be requested: Were payment arrangements made with the court reporter/court recorder? ~Yes D No DIndigent ~ Court Reporter D Court Recorder D Official D Substitute

First Name: erri Middle Name: ~L:.=====::========~ ~=====::::::=======~

LastNam~e~:__ ~D:a:v:i~s~ ~ ~ Suffix: Address 1: Address 2: City: State: 5902-0908

Fax: Email:

X. Supersedeas Bond

Supersedeas bond filed: DYes ~ No If yes , date filed:

Will file: D Yes ~ No

XI. Extraordinary Relief

Will you request extraordinary relief (e.g. temporary or ancillary relief) from this Court? ~ Yes D No If yes, briefly state the basis for your request: Denial ofa tempor,!!), inj'J:!u~n~ctt!:iol{jn~. ~_~ .......J

XlI. Alternative Dispute Resolution/Mediation (Complete section if filing in the Ist, 2nd, 4th, 5th, 6th, 8th, 9th, 10th, 11th, 12th, 13th, or 14th Court of Appeal)

Should this appeal be referred to mediation?

DYes ~No

Ifno, please specity:~i\!artll:;i~e~sJth~av!je;..Jaa!lr!.le2:!atltd]..Jt~~:l:!..l;~!.!.21!.l:!!!I1- ••.• Has the case been through an ADR procedure? ~Yes D No ----------~~~~~--------------------~ IfY9,whowasiliemed~~~~~~m~m~~~c~a~s~e:l:s~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ What type of ADR procedure? •• m_e..;,d...ia••t,...;io_n --l

At what stage did the case go through ADR? ~ Pre-Trial D Post-Trial D Other If other, please specify: '-- ~ ~ __ ~ _I

Type of case? Inj~un~ct~io~n~ _ Give a brief description of the issue to be raised on appeal, the relief sought, and the applicable standard for review, if known (without prejudice to the right to raise additional issues or request additional relief):

orrowersfailedto snow a probableright of

How was the case disposed of? IO;O;.;t;,;he;;,;r~ .....I

Summary of relief granted, including amount of money judgment, and if any, damages awarded. A temporary inJuctlOn Ifmoney judgment, what was the amount? Actual damages: Punitive (or similar) damages:

Attorney's fees (trial): Attorney's fees (appellate): Other:

Will you challenge this Court's jurisdiction? DYes ~ No Does judgment have language that one or more parties "take nothing"? D Yes ~ No Does judgment have a Mother Hubbard clause? DYes ~ No Other basis for finality? Rate the complexity of the case (use 1 for least and 5 for most complex): D I ~ 2 D 3 D 4 D 5 Please make my answer to the preceding questions known to other parties in this case. ~Yes D No Can the parties agree on an appellate mediator? D Yes ~ No

----

If yes, please give name, address, telephone, fax and email address: Name Address Fax Email

Languages other than English in which the mediator should be proficient: Name of person filing out mediation section of docketing statement:

XllI. Related Matters

List any pending or past related appeals before this or any other Texas appellate court by court, docket number, and style.

XIV. Pro Bono Program: (Complete section if filing in the Ist, 3rd, 5th, or 14th Courts of Appeals)

The Courts of Appeals listed above, in conjunction with the State Bar of Texas Appellate Section Pro Bono Committee and local Bar Associations, are conducting a program to place a limited number of civil appeals with appellate counsel who will represent the appellant in the appeal before this Court.

The Pro Bono Committee is solely responsible for screening and selecting the civil cases for inclusion in the Program based upon a number of discretionary criteria, including the financial means of the appellant or appellee. If a case is selected by the Committee, and can be matched with appellate counsel, that counsel will take over representation of the appellant or appellee without charging legal fees. More information regarding this program can be found in the Pro Bono Program Pamphlet available in paper form at the Clerk's Office or on the Internet at www.tex-app.org. If your case is selected and matched with a volunteer lawyer, you will receive a letter from the Pro Bono Committee within thirty (30) to forty-five (45) days after submitting this Docketing Statement. Note: there is no guarantee that if you submit your case for possible inclusion in the Pro Bono Program, the Pro Bono Committee will select your case and that pro bono counsel can be found to represent you. Accordingly, you should not forego seeking other counsel to represent you in this proceeding. By signing your name below, you are authorizing the Pro Bono committee to transmit publicly available facts and information about your case, including parties and background, through selected Internet sites and Listserv to its pool of volunteer appellate attorneys. Do you want this case to be considered for inclusion in the Pro Bono Program? DYes IZI No

Do you authorize the Pro Bono Committee to contact your trial counsel of record in this matter to answer questions the committee may have regarding the appeal? DYes IZI No

Please note that any such conversations would be maintained as confidential by the Pro Bono Committee and the information used solely for the purposes of considering the case for inclusion in the Pro Bono Program.

If you have not previously filed an affidavit ofIndigency and attached a file-stamped copy of that affidavit, does your income exceed 200% of the U.S. Department of Health and Human Services Federal Poverty Guidelines? DYes IZI No These guidelines can be found in the Pro Bono Program Pamphlet as well as on the internet at http://aspe.hhs.gov/poverty/06poverty.shtml.

Are you willing to disclose your financial circumstances to the Pro Bono Committee? DYes IZI No If yes, please attach an Affidavit ofIndigency completed and executed by the appellant or appellee. Sample forms may be found in the Clerk's Office or on the internet at http://www.tex-app.org. Your participation in the Pro Bono Program may be conditioned upon your execution of an affidavit under oath as to your financial circumstances.

Give a brief description of the issues to be raised on appeal, the relief sought, and the applicable standard of review, if known (without prejudice to the right to raise additional issues or request additional relief; use a separate attachment, if necessary).

XV. Signature

Signature of counsel (or pro se party) Date: October 21 2015

Printed Name: Ryan Webster 1 State Bar No.:

~~~~------~ ~4066272 ]

Electronic Signature: ~sI R)'an Webster ··1 (Optional)

XVI. Certificate of Service

The undersigned counsel certifies that this docketing statement has been served on the following lead counsel for all parties to the trial court's order or judgment as follows on October 21,2015

Signature of counsel (or pro se party) Electronic Signature: ls/ Ryan Webster (Optional)

State Bar No.:

Person Served Certificate of Service Requirements (TRAP 9.5(e)): A certificate of service must be signed by the person who made the service and must state:

(I) the date and manner of service; (2) the name and address of each person served, and (3) if the person served is a party's attorney, the name of the party represented by that attorney

Please enter the following for each person served:

Date Served: October 21 2015 --~---'

Manner Served: I mail ~----------------~

First Name:

Middle Name: LastNam;e:: __ ~R:y.:le:y';- ~

Suffix:

Law Firm Name: Skelton, Slusher, Barnhill, Watkins & Wells

Address 1: Address 2:

City: Lufkin

State 75901

Fax:

Email:

If Attorney, Representing Party's Name: David & Kathryn